ESSO STANDARD KENYA LTD vs ONESMUS KIHARA MWANGI [1985] KECA 134 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal notice filed years late, ruling that courts' own delays cannot excuse a litigant who fails to follow appeal procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the court's delay in furnishing certified copies could exclude time for the purposes of the intended appeal
It could not, because the proviso to rule 81(1) can only be invoked where the initial application for certified copies was copied to the other party's advocates as rule 81(2) requires; the initial letter here was not copied, and the later letters were not sent within 30 days of the decision
The court applied the settled authority of Jaswantrai Aggarwal v Lekhraji Aggarwal (Madan, JA). Since the conditions precedent in rules 81(1) proviso and 81(2) were not met, whatever the fate of the lost file or the registrar's delay, no time could be excluded by the registrar's certificate. The application therefore had to be determined on its merits with the full delay counting against the intended appellant.
Whether the gross delay should be condoned notwithstanding the loss of the High Court file
No. Although blame for the loss of the file could not be attributed to the respondent, he could have ensured the decree was extracted and cooperated in reconstructing the file; no active steps were taken since April 19, 1982 and no concurrent application for extension of time was filed
The court balanced the sympathy it felt for the respondent against the requirement of diligence. A litigant cannot rely solely on the court's mishaps; he must take steps such as extracting the decree, which is a vital document for the court's jurisdiction, and pursuing reconstruction of the file. The delay was gross and unexplained by any application for extension of time, justifying striking out.
The competency of that part of the application seeking to set aside the stay of execution
That part of the application was incompetent, but the point was moot because the stay had been granted only pending the disposal of the appeal, which was struck out
The stay granted by Nyarangi, J on July 23, 1980 was tied to the intended appeal. Once the notice of appeal was struck out, the foundation of the stay fell away, so the court found it unnecessary to rule further on that limb. The judgment does not explain the basis of the incompetence, but records the outcome and its practical irrelevance.
Legal principles established
#- The proviso to rule 81(1) of the Court of Appeal Rules excusing delay cannot be invoked unless the initial letter applying for certified copies of the proceedings and judgment is copied to the other party's advocates as required by rule 81(2)
- A party intending to appeal must take active steps to prosecute the appeal, including extracting the decree and cooperating in the reconstruction of a lost file; gross inordinate delay will not be condoned
Court orders
#- 1.Notice of appeal filed on July 22, 1980 struck out
- 2.That part of the application seeking to set aside the stay of execution granted by Nyarangi, J on July 23, 1980 declared incompetent (moot as the appeal is struck out)
- 3.Costs of the application awarded to Esso
- On appeal from
- High Court of Kenya at Nairobi
- High Court Civil Suit 4046 of 1979
- Jurisdiction invoked
- Appellate jurisdiction over an intended appeal from the High Court, under the Court of Appeal Rules (rule 81); application to strike out a notice of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ESSO STANDARD KENYA LTD vs ONESMUS KIHARA MWANGI [1985] KECA 134 (KLR)", Case Analysis (1985). Civil Application No 29 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/134/eng@1985-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.